Stevens v. Queen Ins. Co.

• Decision Date: 23 February 1892
• Citation: 51 N.W. 555,81 Wis. 335
• Parties: STEVENS v. QUEEN INS. CO.
• Court: Wisconsin Supreme Court

81 Wis. 335

51 N.W. 555

STEVENS

v.QUEEN INS. CO.

Supreme Court of Wisconsin.

Feb. 23, 1892.

Appeal from circuit court, Grant county; GEORGE CLEMENTSON, Judge.

Action by P. T. Stevens, administrator, against the Queen Insurance Company, on a fire insurance policy. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought by the plaintiff, as administrator of Greenberry Thompson, to recover against the defendant company for a loss sustained by the plaintiff's intestate under a policy of insurance issued May 6, 1884, by the defendant company, whereby it insured said Thompson to the amount of $2,000, distributed as follows: $200 on his dwelling-house; $150 on his household furniture; $25 on wearing apparel; $50 on his cabinet organ, while contained therein; $300 on his frame barn and sheds adjoining; $600 on hay and grain contained therein; $525 on horses in the barn or on the farm; $25 on farming utensils, tools, harness, hay fork, and tackle; $75 on mower and reaper; and $50 on buggy contained in the barn on said premises,--for the term of five years. A loss occurred by fire, January 6, 1889, and was total as to the buildings insured, and to the extent of $555 for household furniture and wearing apparel in the dwelling-house, harness and tools in said buildings, and the mower and reaper and hay and grain in the barn consumed by the fire. The policy did not protect any of the personal property so lost except when contained in said buildings. It was provided that the policy should be and become void “if there shall now or hereafter be any mortgage * * * or other lien not herein consented to, or in case any change shall take place in the title, possession, or interest of the assured in the property hereby insured, or if any other person shall now or hereafter have any interest therein, * * *” without the insured first obtaining the written consent of the company; and it was stipulated that the policy “shall not be valid unless countersigned by the duly-authorized agent of the company at the place of issue, and no such agent is authorized to alter the above conditions.” The application for the policy showed that there was then a mortgage on the premises for $1,200, due in three years; and the policy was written and countersigned by one S. H. Taylor, as agent for the company. On the 17th day of March, 1885, about 10 months after the delivery of the policy, the insured mortgaged the premises on which said buildings were situated for $3,000, to secure a loan for that sum, $1,200 of which was applied, it appeared, to paying up the previous mortgage. This loan was negotiated by the said Taylor for the assured, and he witnessed the mortgage given to secure it, and took the acknowledgment thereof as notary public. Mr. Taylor, the agent of the company, testified, in substance, to his issuing and countersigning the policy as agent for the defendant company, to his negotiating the $3,000 loan subsequently for the assured, and to witnessing the execution of the mortgage given to secure the same, and taking the acknowledgment thereof. He testified that nothing was said by the assured or by any one about the policy of insurance at the time of negotiating the loan; that it was not called to his attention in any way; that it did not occur to him to associate the two together; that the first time they were associated together was when the adjuster for the company called his attention to the fact of the mortgage, after the fire; that he had never had occasion to refer to the policy, and that it had passed out of his mind. The company denied liability on the ground of the execution and delivery of the mortgage, March 17, 1885, because it was made without the knowledge or consent of the defendant, whereby the policy became void. The court held the policy valid, and the plaintiff had judgment for the entire loss, $1,055; and the defendant company appeals.Clark & Taylor, for appellant.

H. Buchner and T. L. Cleary, for respondent.

PINNEY, J., ( after stating the facts.)

The representation contained in the application of the insured for his policy, as to incumbrances on the property, is regarded as a warranty, and is material to the contract. Its purpose is to ascertain the amount of the interest of the insured in the property, as affecting the judgment of the insurer as to the character of the risk, by taking into consideration the...